United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
Brooks Goplin was a satellite/cable technician for defendant
WeConnect, Inc. In this proposed class action, Goplin
contends that WeConnect failed to pay him for some of the
time he spent working and altered his time records to deprive
him of regular and overtime wages, in violation of the Fair
Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19,
and Wisconsin wage and hour laws. Dkt. 1. WeConnect moves to
dismiss the case in favor of arbitration pursuant to an
arbitration agreement or to stay the case pending the
U.S. Supreme Court's decision in Epic Systems Corp.
v. Lewis, Dkt. 7. Because WeConnect has not shown that
it can enforce the agreement and because the concerted action
waiver in the agreement is unenforceable, rendering this
action exempt from arbitration under the terms of the
agreement, the court will deny WeConnect's motion to
dismiss or stay the case.
deciding a motion to dismiss under Rule 12(b)(3), the court
may consider the allegations of complaint and information
submitted by affidavits. See Continental Cas. Co. v. Am.
Nat'l Ins. Co., 417 F.3d 727, 733 (7th Cir. 2005).
The court will accept as true the allegations in the
complaint unless they are contradicted by affidavits. See
Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d
801, 806 (7th Cir. 2011). The court resolves all factual
disputes and draws all reasonable inferences in the
plaintiff's favor. Id. Here, the relevant facts
is a business that “connect[s] next-generation
technology.” It formed in September 2016 “when
two privately held companies, Alternative Entertainment Inc.
(AEI) and WeConnect Enterprise Solutions,
February 2017, WeConnect hired Goplin as a satellite/cable
technician. A week later, Goplin signed a document titled
“AEI Alternative Entertainment, Inc. Open Door Policy
and Arbitration Program.” Dkt. 9-1. The document
contained the following arbitration provision:
[B]y agreeing to this policy, you agree that in consideration
for your employment and in exchange for promises made by AEI,
Inc. (“AEI” or the “Company”), both
you and AEI understand and agree that either one may elect to
resolve the following types of disputes exclusively through
. . . . Disputes between you and AEI (or any of its
affiliates, officers, directors, managers or employees)
relating to your employment with the Company (including but
not limited to: (1) claims of discrimination under federal,
state or local laws, (2) claims regarding compensation,
including overtime; (3) claims regarding promotion, demotion,
disciplinary action, and/or termination; and (4) claims
regarding the application or interpretation of any of the
terms of this agreement).
Id. at 1. It also contained what is sometimes called
a concerted action waiver:
By signing this policy, you and AEI also agree that a claim
may not be arbitrated as a class action, also called
‘representative' or ‘collective' actions,
and that a claims may not otherwise be consolidated or joined
with the claims of others.
The document provided that the concerted action waiver was
central to the arbitration agreement:
This agreement represents the intent of both you and the
Company to arbitrate disputes that may arise in accordance
with this Agreement. If any clause, provision or section of
this Agreement is ruled invalid or unenforceable by any court
of competent jurisdiction, the invalidity or unenforceability
of such clause, provision or section shall not affect any
remaining clause, provision or section hereof. However, to
the extent this class/collective action wavier is found to be
unlawful and/or unenforceable, from that point forward the
collective claim will not be covered by this agreement and
may be pursued in a court of law unless and until the claim
ceases to be party of a class-action, representative-action
or consolidated case.
signed the agreement on February 2, 2017. The signature ...